Djurberg v London Borough of Richmond & Ors

A court should not infer a procedural sanction from a rule, practice direction or case-management order unless the sanction arises clearly from its terms or by necessary implication. Mandatory wording alone is insufficient. An express sanction should ordinarily appear on the face of the order.

Permission to amend a pleading depends on the overriding objective, the clarity and form of the proposed amendment, and whether the amended claim has some prospect of success. Delay is relevant, but delay alone does not justify striking out a claim. Strike-out may be appropriate where the delay has made a fair trial impossible, particularly when core matters remain unparticularised.

A pleading based on an alleged agreement must have a factual basis and a realistic prospect of establishing a binding agreement.

This was a first-instance decision on four applications in a long-running claim concerning alleged interference with access to a boatyard, nuisance, a public right of navigation and alleged agreements with the first defendant local authority.

The claimant sought permission to amend his particulars of claim. The first defendant applied to strike out the claim, and sought relief from sanctions for failing to issue and serve its strike-out application by the deadline in an earlier case-management order. The claimant also sought consolidation with County Court proceedings, but that application was no longer pursued.

The central issues were whether the case-management order contained an implied sanction, whether the proposed amended claims had any prospect of success, and whether delay, inadequate particularisation and the impossibility of a fair trial justified strike-out.

1. Applications and procedural sanction. The application to consolidate was no longer pursued. The first defendant’s failure to issue and serve its application by the deadline did not engage the relief-from-sanctions regime because the order contained no express or implied sanction. The order was routine case management. The court should not search for sanctions which do not clearly arise from the CPR or the order; mandatory language such as “must” does not itself create a sanction. An implied sanction is exceptional where the court could have stated it expressly. ([2019] EWHC 3342 (Ch), paras 27–35.)
2. Amendment. Permission to amend is governed by the overriding objective. The court must consider the form and clarity of the amendment and whether the proposed claim has some prospect of success and is not based on invention or speculation. The proposed contractual claims had no realistic prospect of success because the alleged 2014 agreement was unsupported by the filed consent order, the court had not approved the proposed adjournment, and the first defendant could not have agreed to endorse planning applications in its capacity as local planning authority. The alleged agreement to return seized property had also been rejected in unequivocal terms in earlier County Court proceedings. ([2019] EWHC 3342 (Ch), paras 36–44.)
3. Particularisation and strike-out. The remaining nuisance and public-navigation claims were inadequately particularised. The claimant had failed to identify essential facts concerning knowledge of the riverbank condition, the condition of the riverbank and the extent of tree growth. The allegation of personal antipathy and malice was not itself a cause of action and was unparticularised. ([2019] EWHC 3342 (Ch), paras 45–52.)
4. Delay and fair trial. Delay alone is insufficient to strike out a claim, even if inordinate and inexcusable. Here, the claimant had taken no steps for several years, had not adequately pleaded core issues, and the passage of time meant that a fair trial of the original allegations was no longer possible. The claim was therefore struck out. The proposed amendment was dismissed, and the first defendant’s strike-out application succeeded.

First-instance decision. No appellate history is stated in the judgment.